Ethan Leib s Professor of Law at Fordham Law School and is the author of What is the Relational Theory of Consumer Form Contract?, in Revisiting the Contracts Scholarship of Stewart Macaulay: On the Empirical and the Lyrical 259 (Jean Braucher, John Kidwell & William Whitford eds., Hart Publishing 2013)

People tend to begin with
praise. In this case, it isn’t just
throat-clearing. Although one could be
forgiven for thinking that the subject of consumer form contracts has been
mined to death, much impresses in Peggy Radin’s Boilerplate. Although I
don’t agree with all of them, here are just a few of the book’s productive
interventions:

Radin
invites us to consider whether tort law rather than contract law would make
better sense of the consumer form contract gone wrong in which someone is
harmed, “out of the blue, by the unexpected actions of another” (23);

Radin
invites us to think about how complicity with certain types of boilerplate that
divests important procedural and substantive rights has had the systematic
effect of converting property rules to liability rules, unilaterally priced by
form drafters (75);

Radin
questions whether we should be allowing contract to undermine the value of
“fair use” of intellectual property or the value of free expression, since some
seemingly enforceable boilerplate purports to limit consumers’ permission to
use or criticize the products they buy (172-76);

Radin
reminds us that when consumers’ reasonable expectations are that they will be
exploited by boilerplate, the judicial doctrine allowing enforcement of only
consumers’ “reasonable expectations” will prove inadequate in addressing the
problems with boilerplate (highlighting the ambiguity in the doctrine between
positive and normative expectations) (85);

Radin
provokes us by characterizing consumer form contracts as “sturdy
indefensibles:” we might need to use them even though they don’t fit the
“‘grammar’ of the legal infrastructure of contract law” (143); and

Radin
argues that boilerplate should be judged based on the nature of the right
involved, the quality of consent provided by those bound, and the dissemination
of the right that is purportedly infringed (155).

And there are more pearls for
readers, too.

But I had one quite basic problem
with the book, which cuts to the very core of Radin’s approach.

Most importantly, she really tries
to train the reader not to consider boilerplate instruments as actuallycontractual. Indeed, if her
editor had allowed it, she might very well have used scare quotes throughout
the whole book (rather than just the beginning) to highlight that consumer form
contracts with boilerplate are not really
contracts. The reason for their
exclusion from the world of contract: because of the routine absence of consent in transactions using boilerplate. It is the lack of consent (or the severely attenuated
consent) in consumer form contracting which underwrites her claim that boilerplate
contributes to “normative [and] democratic degradation,” a central trope that
recurs throughout the book.

Admittedly, it seems intuitive to
root contract in consent. The liberal
theory of autonomy to which many versions of contract theory owe their genesis
promotes consent as a principal virtue.
So it is no surprise that Radin seeks to maintain the liberal theory of
autonomy and contract with it.

But there is a whiff of fetishizing of
consent in Radin’s rendering. Absence
and attenuation of consent is everywhere in the transactional world of contract:
in employment, long-term corporate relationships, in franchises, in marriage. Contract is a multifarious enterprise that
ultimately governs many modalities of exchange.
Radin surely attempts to explore the fine line between the consensual
and non-consensual. But excluding a huge
portion of voluntary exchange from the domain of contract seems unlikely to be
true to the rich practice that has, from time immemorial, been a method of
channeling and regulating complex relationships in which transactions
occur. I fear a “purer” contract – one
without boilerplate and one which squeezes out all attenuated consent – will ultimately
leave us with a more ideological product, one that undergirds, reinforces, and
grows out of a libertarian rather than a liberal theory of autonomy. And that may lead to more substantial normative
degradation than would fighting bad contracts with some contract law.

David Horton is Acting Professor of Law at the UC Davis School of Law.

One of Boilerplate’s most
provocative claims is that mass contracting causes “democratic
degradation.” To be sure, this idea is
not entirely new. In 1931, Karl
Llewellyn called standard forms “the
exercise of unofficial government”; forty years later, W. David Slawson analogized
to administrative law and argued that adhesive terms, like rules promulgated by
unelected bureaucrats, suffer
from a democracy deficit. However,
with the rise of public choice theory—which blurs the line between public and
private lawmaking by conceptualizing statutes as “deals” between politicians
and interest groups—these critiques have all but vanished. Professor Radin seeks to reinvigorate
them. She contends that boilerplate replaces
“the law of the state with the ‘law’ of the firm” and therefore undermines our
commitment to representative democracy (p. 16).

I’m particularly interested in how Professor Radin’s democratic
degradation thesis plays out in the field of consumer and employment
arbitration. (For whatever it’s worth,
I’ve explored similar issues here and here, and
in my forthcoming review of
Boilerplate). Of course, unlike other controversial fine
print terms, arbitration clauses can claim to have a democratic pedigree:
Congress passed the Federal Arbitration Act in 1925 to encourage the use of
private dispute resolution.
Nevertheless, it is widely accepted—even among the Justices—that the
FAA’s current musculature is “an
edifice of [the Court’s] own creation.”
In addition, the saturation of
mandatory pre-dispute arbitration clauses—at least
among major companies in certain industries—rivals traditional lawmaking in
its scale. For instance, the class
arbitration waiver in AT&T’s wireless service contract binds more customers
than the combined populations of California, Texas, New York, and Florida. Thus, to borrow from Professor Slawson, if by
making “law” we
mean creating or altering enforceable rights or duties, then companies make
more law in a day by projecting arbitration across the economy than Congress
makes in a year.

Is this spectacular display of private power legitimate? Professor Radin suggests that it’s not. She notes that “most people don’t know what
arbitration is” and that arbitrators “are widely believed to be more favorable
to businesses” (p. 4). Yet a skeptical
reader might push back. What if, as the
Court has repeatedly declared, the bare decision to resolve a dispute in the
arbitral forum does
not affect its outcome? Arguably,
then mass arbitration is an elegant shortcut to the meandering path of litigation. Moreover, there are safeguards against
drafter overreaching. Courts can
invalidate one-sided arbitration clauses under the contract defense of
unconscionability. Likewise, the vindication
of rights doctrine entitles plaintiffs to a judicial forum if they prove that
they can’t effectively vindicate federal statutory claims in arbitration. Before we condemn mass arbitration as
do-it-yourself law reform, shouldn’t we insist on evidence that it deprives
consumers and employees of substantive rights?

The rejoinder to this
rejoinder can be found in the Court’s recent jurisprudence. In AT&T Mobility
LLC v. Concepcion, the Court held that class arbitration waivers must
be enforced even if small-value consumer protection claims will “slip through
the legal system.” Thus, in perhaps the most fraught context in all civil
litigation—the class action—the Court has disavowed the principle that the
switch to an arbitral forum is outcome-neutral.
It has allowed drafters to engage in aggregate contracting—a practice
that Professor Radin persuasively argues is not “contracting” at all—while
denying adherents the ability to aggregate claims. And in the pending case of American
Express Co. v. Italian Colors Restaurant,
the Court is expected to extend Concepcion
and mandate bilateral arbitration of federal antitrust claims even though the
cost of expert fees alone greatly exceeds any individual plaintiff’s potential
recovery. Just as Professor Radin
contends, the casualties of this quiet revolution will be “rights that
are granted through democratic processes” (pg. 16).

Andrew Gold is a Professor of Law at the DePaul University College of Law.

Margaret Jane Radin’s new book, Boilerplate, is an outstanding
contribution to the literature on contract theory and policy. In this review, I will focus on her analysis
of consent, and in particular what it means to have consent for purposes of
contract theory. For the most part, my
concern will be conceptual, and not normative.
This conceptual focus has normative implications, however. Radin argues that tort law is an appropriate
means to regulate mass market boilerplate, in part because she believes that
boilerplate is not properly conceptualized in contract terms. As she concludes: “it would be better to
stop referring to boilerplate as contractual, because of its lack of fit with
contract theory and with the basic principles of the legal system regarding
what a contract is and what a contract is for.”
(Radin, Boilerplate, at 242) This claim appears to be grounded in the
vital role consent plays in contract theory.
I share the view that consent is vital to contracts, but I am less sure
that boilerplate should be seen as non-contractual.

As Radin indicates, boilerplate involves
a spectrum of cases. At one end of the
spectrum are the “sheer ignorance” cases.
In these circumstances, the hapless consumer discovers after the fact
that he or she is supposed to have entered a contract. Yet the consumer has no idea that this was
happening at the time the contract was supposedly entered into. (Id. at 21-23) A good example is a purported agreement which
states, at the bottom of the page, “‘Upon reading this page, you agree to be
bound by these terms and conditions.’”
(Id. at 13) There is no ready way
to square these cases with standard views of consent, and I entirely agree with
Radin that they are problematic. It is
questionable whether they should properly be called contracts. With that in mind, let’s bracket the sheer
ignorance cases.

Suppose, instead, that we consider
another case – the online consumer who has been presented with detailed terms
and clicked “I agree,” thus purportedly entering into a boilerplate contract. Very often, the consumer has not read the
terms when clicking “I agree,” and would not fully understand them if they had
been read. This is apparently not a
sheer ignorance case as Radin defines that category. Can these cases be understood in terms of contractual
consent? Maybe not, if consent means
informed consent. At times, Radin seems
to mean informed consent, as when she suggests that information asymmetry would
render it problematic to assimilate clicking “I agree” to what she calls “the
ordinary conception of consent”. (Id. at
25) Yet it is highly debatable whether
consent means informed consent, outside of those limited areas in which the law
goes out of its way to insist on informed consent (e.g., the provision of medical services). And there is no indication that contract
theory relies on the idea of informed consent as it is usually applied.

Assuming informed consent is not the
standard, there are a variety of fact patterns which suggest that clicking “I
agree” can implicate consent. Randy
Barnett has offered a compelling example of this type. He describes a promise based on a sealed
envelope:

Suppose I say to
my dearest friend, “Whatever it is you want me to do, write it down and put it
into a sealed envelope, and I will do it for you.” Is it categorically impossible to make such a
promise? Is there something incoherent
about committing oneself to perform an act the nature of which one does not
know and will only learn later?

(Randy
E. Barnett, Consenting to Form Contracts,
71 Fordham L. Rev. 627, 636
(2002).) This is a quite plausible case
of consent – full-fledged consent – and this would be so even if consent is
understood in subjective terms. It also
has important implications for the present inquiry. It suggests that not knowing precisely what
one has consented to is not a per se bar to consent.

Barnett
recognizes an important limit on the envelope example. There are cases where a promisor could
reasonably say: “‘while I did agree to be bound by terms I did not read, I did
not agree to that.’” (Id. at 637) Radically unexpected terms would not have
been consented to in a case like the envelope case. A similar limit seems to apply in the case of
clicking “I agree” with respect to unread boilerplate.

Radin raises several concerns with a
focus on expectations. She suggests that
expectation-based approaches will not make for a predictable
jurisprudence. (Radin, supra, at 85) That may be right, although this is an
empirical question. But the possibility
that courts are not institutionally well-situated to assess the unexpectedness
of contract terms is not an argument that addresses the conceptual question at
issue. It does not tell us whether we
have consent for contract theory purposes.
Instead, it is an institutional argument regarding good legal policy.

Another response draws our attention
to the distinction between empirical expectations and a separate category, normative
expectations. The argument here is that
we have an ambiguity between expectations as they may exist among contracting
parties (the empirical kind), and expectations in the sense of “the just
practices that a citizen has a right to expect” (the normative kind). (Id.)
There are notable and interesting differences between the two types of
expectations, and the book offers important insights by drawing our attention
to this issue. In fact, I’m sympathetic
to Radin’s concern that empirical and normative expectations can be mixed
together in contracts jurisprudence. Courts
may look to either sense of expectations, and the jurisprudence may become
unpredictable. But again, this concern
does not tell us whether we have consent for contract theory purposes. This too is an argument regarding good legal
policy.

Radin also offers a further argument
concerning the different views on contractual consent. She suggests that the meaning of clicking “I
agree” is “more analogous to a contested concept.” (Id. at 90)
This could raise doubts as to which terms parties have consented
to. It could also raise doubts that any
consent exists at all. The two
situations need not coincide. While the
scope of consent could be very uncertain as a matter of objective meaning, this
may not mean that people who click on “I agree” have no idea they are agreeing
to anything at all. Whether there is any
recognized objective meaning to clicking “I agree” is again an empirical
question, and it may vary by community.
Depending on context, I suspect that if you ask online consumers whether
they have agreed to anything after clicking “I agree” when confronted by a list
of terms, many would think they had agreed to something. (Of course, it
might be something far less than the content which the firm would hope to cover
with their contract!)

None of this is to say that Radin is
wrong in her policy prescriptions. My
concern, as noted at the outset, is conceptual.
Once we bracket sheer ignorance cases, it is far from clear that mass-market
boilerplate falls outside of the consent requirement that underpins much
contract theory. Radin has many other
reasons to suggest changes to our legal regime, and I am hopeful that her work
will trigger further discussion of the concerns she raises. Yet it is one thing to say that boilerplate
should be regulated in various ways, and another thing altogether to say that
it is not contractual. With that caveat,
this book draws our attention to a variety of important consent-related
problems. Boilerplate is a very important contribution to existing debates,
and it should be read by anyone interested in understanding the current state
of contract law and its potential for reform.

Theresa Amato, a public interest lawyer, is the executive director of Citizen Works, and the director of the Fair Contracts Project (faircontracts.org).

Professor
Radin’s masterpiece Boilerplate sets
forth the intellectual underpinnings for an energetic movement to correct the
imbalance of power between corporations and consumers in fine print contracts. Her explanations of the degradation of consent
and the resulting diminishment of the rule of law should incite all those who
read it to not merely nod in accord, but to take action.

Radin
calls for a new legal way to analyze the boilerplate that she painstakingly
shows fails to merit the term “contract” —and therefore should not be evaluated
under contract law. Instead, she
suggests we evaluate these mice-print monstrosities as a product itself that
can cause harm. The boilerplate should
be considered a potential inflictor of consumer harm through massive “rights
deletion,” or “rights strip mining,” as Ralph Nader says, and thus should be
addressed in tort, or under a new legal rubric altogether. This bold suggestion alone elevates the book
to compulsory reading as most academic articles tend only to set forth
descriptions and analyses of the epic failure of the disclosure regulatory
paradigm, but then fall short on solutions and action.

In
both academia and consumer advocacy, far too few people are focused on solving
the problem—to create remedies beyond studying the problem or treating its symptoms
in a legal aid, case-by-case manner. Though
there may be disagreement on the exact contours or how to solve the problems of
boilerplate, there does seem to be some movement in recognition, at least, that
there is a problem in need of solution.

A survey
of the academia and advocacy landscape reveals:

The
fine print qua fine print has grown longer and mutates more frequently, as NYU School
of Law Professor Florencia Marotta-Wurgler has documented, for example, with
on-line contracts;

Businesses
are not self-policing on boilerplate, or making market corrections for the
consumer’s benefit. To the contrary,
recent Supreme Court decisions have spurred rights-reducing action, by sanctioning,
for example, mandatory arbitration and class action waivers;

Consumer
abuses in fine print will not be solved with financial literacy courses and by
blaming consumers for not reading unilaterally-imposed contracts, which they cannot
understand if they do, and then don’t necessarily use to make decisions, as
Loyola Law School Los Angeles Professor Lauren Willis and others have ably documented;

Despite
decades of computer use, inadequate corporate transparency regulation means
that in many industries terms of service are still not online; it is often
difficult to obtain copies of the contracts—until after becoming a customer for
the underlying product or service. This
has the additional potential to skew academic research to on line industries,
and not necessarily where some of the gravest rights-reducing behavior may
exist, e.g., in harder-to-obtain nursing home or employment contracts.

The judiciary
applies antiquated tenets of contract law—in a legal fiction—that upholds abusive
provisions in a case-by-case unconscionability analysis, primarily enforcing
them by continuing to place the outdated “duty to read” on consumers, including
those who patently cannot. Consumers
face a curtailed potential for redress, especially when coupled with
disappearing class action potential.

Federal
and state agencies to date have not allocated significant resources for a much
needed focus on the corporate fine print—not even at the bully pulpit level—nor
have they posited suitable alternatives.

Instead
of Congress doling out more regulatory authority to agencies (as they did with
the CFPB and the SEC and as they should to help fix this), for example, members
continue to contest the CFPB, have failed to grant the Federal Trade Commission
Administrative Procedures Act rulemaking authority, leaving it hamstrung, and
have failed to hold hearings on the widespread abuses of boilerplate affecting
tens of millions of Americans daily.

We at Fair Contracts believe that there should be greater
focus on seeking a systemic, upstream solution to boilerplate. Though
some would hang their hats on piecemeal “improved disclosure” as a least
invasive means of correction, such a course of action alone is tepid and wholly
inadequate to the serious problems documented by Radin and others.

Nor must we only
wait for the next glacial restatement of contract law, or a revolution of
contract theory that reverses the legal presumption of enforcement of harmful
contract terms, or a different way to analyze the legality of fine print
contracts, including treating them as torts as all of these are definitely
long, long, long-run solutions.

Intermediary, if admittedly only partial, remedial steps
exist that we should explore for innovation
that could lead to a better future for consumers, including:

Dramatic elevation of public awareness of the rights
removal hazards contained within the fine print, with a multi-pronged education
and media campaign;

Significant increases in data collection of
contracts and scholarship across multiple industries, with more empirical
research to ascertain the prevalence of harmful consumer provisions, their
collusive origins, and their negative economic consequences, with examples of
how consumer harm is caused to large categories of people who forfeit their
rights without knowledge of doing so;

Promulgation of a model set of principles for
provisions within, and reform of, the fine print;

Outright legislative and regulatory bans (or
workarounds – through ombudsman consumer review boards) on contract provisions
that undermine the rule of law, fair competition and democracy, including the
deprivation of consumers of the civil justice system and their First Amendment
rights, vendor assertions of no
accountability (thus allowing contract law to eat tort law alive) and consumer
disadvantageous unilateral modification powers;

Development of model state and federal
legislation to ensure a fair regulatory playing-field;

Development of a “fair trade” or “hypoallergenic”
or “green-star energy-efficient”-type seal that does not necessarily signal a
“fair contract” but does signal the absence of a known set of provisions that
reduce consumer rights for those consumers who care about them, which should be
most if the educational goals were attained, and thus obviate the need to read
through the fine print for at least that standardized set of terms symbolized
by the seal. This would permit consumers
an actual market within which to shop, should government fail to act to
preserve their rights; and

Studying the consequences from other countries
which are ahead in consumer protection.
There is a reason that the EU black and grey lists terms, as does
Australia: They are unfair to consumers
and their governments do not let corporations dictate all the terms, rewriting
and undermining in a private ordering those public policies passed as
legislation. In early April 2013, The Consumer
Council of Hong Kong urged businesses to produce short and simple contracts
that eliminate unfair terms and is starting to provide model contracts. See: http://www.consumer.org.hk/website/ws_en/competition_issues/policy_position/2012040301.print

We should be debating these
matters in the United States. We need
an organized consumer constituency to reverse the contract peonage so reform
efforts may gain the momentum needed to create alternatives to the unilateral,
corporate-dictated status quo.

In this fine book, Margaret
Jane Radin concludes that “consent” lacks a reality referent in contract. That is, somewhere between what she describes
as “World A (Agreement),” the universe of enforceable promises negotiated “at arms’ length” by parties of similar relative sophistication, and “World B (Boilerplate),” where standard and oppressive
terms effect normative and democratic degradation, consent is lost. This conclusion is not shocking; it is
difficult to think of anyone (probably including even Randy Barnett) who
honestly believes that real consent has very much to do with most (even
virtually all) contracting these days.
So we can all agree: where there is boilerplate, there is no “meaningful” consent, which is to say
there is none of the consent that should matter to contract. From that premise, Professor Radin concludes
that World B is not a contracts universe at all, but is instead a realm better
understood by reference to tort principles (and it is even worse than Grant
Gilmore ever imagined).

But once we acknowledge the death of consent, how much
more new is there to say about boilerplate?
You could despair with Professor Radin that political forces make it
unlikely that the American justice system will respond as would the European
Union; that consequentialist apologists rely on arm chair empirical assumptions
without actually doing the necessary math; that by a 5-4 decision of the United
States Supreme Court the Federal Arbitration Act has been contorted to
undermine our justice system; that a curiously reasoned decision of the United
States Court of Appeals for the Seventh Circuit has somehow become the
prevailing (if not final) word on contract formation: but at the end of the
day, it is difficult to identify certainly
the extent of the harm or glimpse a
viable cure. (Those troubled by
boilerplate need to do the same math they complain form contracts proponents
fail to do.)

While Professor Radin is right that there are
distinguishable Worlds of contract, she does not make clear enough that the two
Worlds are on a continuum; they are not so clearly dichotomous. Further, the contours of the continuum are
obscure: many very sophisticated people know quite well what they are giving up
when they sign a form contract or click “I agree," and yet do so
willingly. That is generally the
rational thing to do. Now Boilerplate
does put boilerplate on a three dimensional matrix that would be sensitive to
degrees of consent, alienability of the right in issue, and the size of the
cohort prejudiced. But in describing
Worlds A and B in dichotomous terms, the book may obscure the reasons why it
remains rational to agree to form contracts, without reading their terms. So I think the book would have been stronger
had it described Worlds A and B along a fourth dimension.

What Professor Radin has to say about consent is surely
true, but what she says is really a truism: we know that consent is a
conclusion rather than an analytical device, and that consent is also a term of
art, largely divorced from the important normative work it can do in World
A. What we do not know, though, is when
World A becomes World B: it is not just the case that all form contracts are
World B contracts. Whether a contract is
World A or World B is a function of the very factors that contract doctrine
could take seriously, if the composition of the Supreme Court were different,
and if all Federal Courts of Appeal
judges knew a bit more about the common law of contract and the UCC.

Peter A. Alces is the Rollins
Professor of Law and Cabell Research Professor of Law at the College of William
& Mary School of Law, where he has taught since 1991. He is the author ofA Theory of Contract Law: Empirical Insights and Moral Psychology; Commercial Contracting; The Law of Suretyship and Guaranty; Bankruptcy: Cases and Materials; Cases, Problems and Materials on Payment Systems; The Commercial Law of Intellectual Property; Sales, Leases and Bulk Transfers; The Law of Fraudulent Transactions; and Uniform Commercial Code Transactions Guide. He has also published articles in the Northwestern, Michigan, Minnesota, Illinois, North Carolina, Fordham, California, Texas, and William and Mary Law Reviews, and the Emory, Ohio State and Georgetown Law Journals.

Andrew Gold is a professor of law at the Depaul University College of law. His primary research interests address legal theory and the law of corporations. Following graduation from Duke University School of Law, he clerked with the Honorable Daniel Manion of the Seventh Circuit, and with the Honorable Loren Smith of the Court of Federal Claims. After his clerkships, he joined Skadden, Arps, Slate, Meagher & Flom, where he practiced corporate litigation. Professor Gold's article, "A Property Theory of Contract," was lead article in the 2009 volume of the Northwestern University Law Review. His recent publications also include articles in the William and Mary, U.C. Davis, and Maryland law reviews. In 2007, Professor Gold received the College of Law's Award for Excellence in Scholarship, and, in 2010, he received the Award for Excellence in Teaching. During the 2011-2012 academic year, Professor Gold was a Visiting Scholar at Harvard Law School, and in Fall 2011, he was an HLA Hart Visiting Fellow at the University of Oxford. His scholarship has focused on contract theory; private law theory; fiduciary duties in corporate law; and Section 10(b) of the Securities Exchange Act.

David Horton joined the UC Davis faculty in 2012, after three years at Loyola Law School, Los Angeles. He received his B.A. cum laude from Carleton College in 1997 and his J.D. from UCLA School of Law in 2004. At UCLA, he was elected to the Order of the Coif and served as Chief Articles Editor of the UCLA Law Review. He then practiced at Morrison & Foerster in San Francisco and clerked for the Honorable Ronald M. Whyte of the United States District Court for the Northern District of California. From 2007 to 2009, he taught legal research and writing at UC Berkeley School of Law. Horton’s research focuses on wills and trusts, federal arbitration law, and contracts. His recent work has appeared or will soon appear in the NYU Law Review, Northwestern University Law Review, Georgetown Law Journal, UCLA Law Review, Notre Dame Law Review, North Carolina Law Review, University of Colorado Law Review, and Virginia Law Review in Brief, among others. He also wrote an amicus brief on behalf of contracts professors in AT&T Mobility LLC v. Concepcion, the recent Supreme Court case.

Ethan J. Leib is a noted expert in constitutional law, legislation, and contracts. His most recent book, Friend v. Friend: Friendships and What, If Anything, the Law Should Do About Them (2011), explores the benefits of legal recognition of friendship and was published by Oxford University Press. He has three forthcoming articles on public law subjects: one in the Journal of Political Philosophy examining fiduciary principles in political representation; one in the California Law Review applying the fiduciary principle to the activity of judging within democracies; and one in The University of Chicago Law Review exploring whether elected judges should be interpreting statutes differently from their appointed colleagues. Leib's other academic writing has appeared in journals such as the Yale Law Journal, Northwestern University Law Review, UCLA Law Review, Constitutional Commentary, Election Law Journal, Journal of Legal Education, Law & Philosophy, and elsewhere. He has also written for a broader audience in the New York Times, USA Today, SF Chronicle, Policy Review,Washington Post, New York Law Journal, The American Scholar, and The New Republic. Before joining Fordham, Leib was a Professor of Law at the University of California–Hastings. He has served as a Law Clerk to Chief Judge John M. Walker, Jr., of the U.S. Court of Appeals for the Second Circuit and as an Associate at Debevoise & Plimpton LLP in New York.

We look forward to a stimulating fortnight of exchanges on this important new book.